Most people understand that there are statutes of limitations that govern the time that an injured person has to bring a claim in a court of law. There are numerous other issues of timeliness, however, of which the general public may be less aware.

One of those issues – the notice period for a medical malpractice lawsuit – was at issue in a recent appellate court decision.

Facts of the Case

In a case recently decided by the Massachusetts Appeals Court, Arsenault v. Bhattacharya, the plaintiff was a woman who sued her primary care physician, seeking redress for alleged medical malpractice in the treatment of the her wrists. The woman’s complaint was filed on October 21, 2013. The defendant first began treating her for carpal tunnel and cervical spondylosis with radiculopathy in January 2008.

The defendant filed a motion to dismiss the plaintiff’s lawsuit, asserting that it was barred by the statute of limitations and by the plaintiff’s failure to provide notice as required under Mass. Gen. Laws ch. 231, § 60L. The trial court ruled that the plaintiff’s cause of action accrued on April 5, 2012, and that her complaint was thus timely filed under both the three-year statute of limitations and the seven-year statute of repose.

The trial court went on to hold, however, that the plaintiff’s suit was filed before the expiration of the six-month notice requirement and should be dismissed without prejudice. The plaintiff moved for reconsideration, stating that she had sent a letter of intent to defense counsel on March 4, 2014. The trial court denied her motion, and she appealed.

The Appellate Court’s Decision

The court reversed the lower court’s order and remanded the case for further proceedings. According to the court, dismissal without prejudice was not the appropriate remedy for the plaintiff’s alleged failure to provide notice to the defendant of her intention to sue. The court noted that the statute was silent as to the possible remedies for a plaintiff’s failure to comply and that there were no court decisions interpreting the statute on this issue. Finding that there were “less Draconian consequences than dismissal” available to the trial court judge, those measures – rather than dismissal – should have been considered.

On remand, the lower court was instructed to allow the plaintiff to amend her complaint to address the notice requirement of the statute. As so amended, the plaintiff’s complaint was to be deemed as having satisfied the statute’s notice requirement and as having been timely filed.

To Get Help with a Massachusetts Medical Negligence Case

As this case illustrates, there are many procedural hurdles in medical malpractice lawsuits. Failing to comply with these requirements can be fatal to an otherwise valid claim. To get advice about your case from a knowledgeable Cape Cod medical malpractice lawyer, call the Law Offices of John C. Manoog, III, at (888) 262-6664 for a free consultation. We serve all of Massachusetts, with offices conveniently located in both Hyannis and Plymouth.